Con Law MC

A state statute prohibited individuals from donating more than $1,000 per year to any group that lobbies for or against any matter up for consideration before the state legislature. A voter who wanted to donate $5,000 to a lobbying group challenged the statute on constitutional grounds in federal court.Is the court likely to uphold the statute?

No, because it restricts core political speech and association rights w/o sufficient justification The federal court would likely find that the statute violates the First Amendment by restraining political speech and association rights. While the government may limit the amount of contributions that an individual may contribute to a candidate's campaign, it may not limit contributions to groups that lobby for or against matters before the legislature, because the Supreme Court has found that such a law does not serve a sufficiently important interest to outweigh the restraints that it puts on the First Amendment freedoms of speech and association.

A federal law requiring that all automobiles driven on United States military bases be equipped with air bags would most probably be justified by which of the following?

The Property Clause of Article IV, Section 3. - Congress has the power "to make all needful rules and regulations respecting the territory or other property belonging to the United States." This power would encompass a regulation such as the air bag statute.

A state legislature enacted a statute providing for loaning certain textbooks on secular subjects to students in all public and private schools. In accordance with the statute, the state board of education distributed textbooks to a private school that offered religious instruction and admitted only Caucasian students. Which of the following is the strongest argument against the constitutionality of free distribution of textbooks to the students at the private school?

- Segregation is furthered by the distribution of textbooks to these students. - note: "caucasian students" only = EPC issue, strict scrutiny

A township located in a farming community was composed mostly of persons belonging to a specific religious sect. To help instill proper respect for authority in children, which was a central tenet of the sect, and to maintain order in the classroom, the local school board allowed teachers to inflict corporal punishment. Such punishment was inflicted on a fourth grader in a township school immediately after his teacher saw him pulling a girl's hair. Neither he nor his parents belonged to the religious sect. When the boy's parents learned of the incident, they hired an attorney. Rather than suing the teacher for battery as permitted under state law, the attorney brought an action against the teacher under a federal statute providing a cause of action for damages against any government employee who deprives a person of his constitutional rights. Should the court find the policy allowing corporal punishment to be constitutional?

- Yes, because the punishment was not grossly disproportionate under the Eighth and Fourteenth Amendments. there was no cruel and unusual punishment - No establishment clause issue here. There is no sect preference under the school board's corporal punishment rule here, the rule has the secular purpose of maintaining order in the classroom (the fact that this coincides with the tenets of a local religion does not change that conclusion), its main purpose neither advances nor inhibits religion, and there is no excessive entanglement - no procedural due process issue here; courts have held corporal punishment can be executed by state w/o hearing prior to punishment. A state tort action after the punishment is sufficient

parens patriae

A legal doctrine that gives the state the authority to act in a child's best interest. - The doctrine of parens patriae allows the state to stand in the shoes of a parent, but even a parent may not impose any punishment he sees fit (e.g., a parent may not break a child's arm as punishment for stealing).

Congress' power to investigate executive officers

Congress's power to investigate is limited to matters on which it can legislate. - this scope is broader than questioning only on matters concerning current or planned legislation - exec can refuse to answer on basis of exec privilege if answers will subject him to criminal liability

The United States was involved in a dispute with a small island nation over the ownership of an archipelago. On discovering that the archipelago was rich in oil, the President announced that he would appoint an ambassador to negotiate a treaty with the island nation to jointly exploit the oil reserve. A majority of Senators believed that the island clearly belonged to the United States and did not want to negotiate with the island nation. They passed a resolution requiring the President to include a Senator in his diplomatic mission to ensure that the Senate's view was presented in any negotiation with the island nation. What is the strongest constitutional ground for the President's refusal to do so?

- The President has the exclusive power to select diplomatic representatives of the United States. - The President's strongest argument is that the power to select ambassadors is vested by the Constitution in the President, and the Senate's only power in this respect is to advise and give (or withhold) its consent. The Senate is not given the power to force ambassadors on the President.

Legislation permitting states to completely ban the sale of cigarettes and other tobacco products was passed by Congress and upheld by the United States Supreme Court. Following the lead of other states, a state legislature declined to enact a complete ban on tobacco products. However, it passed a compromise measure that banned all advertisements for cigarettes and tobacco products by any print or broadcast media located in the state. A state tobacco distributor that wished to advertise in local newspapers brings an action in federal court to challenge the state statute. How is the court likely to rule?

- The statute is unconstitutional, because the right to ban all truthful advertising for a product is not automatically justified by the right to ban the sale of a product entirely. - If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid if it (i) serves a substantial government interest, (ii) directly advances the interest, and (iii) is narrowly tailored to serve the substantial interest. While this test does not require that the least restrictive means be used, there must be a reasonable fit between the legislation's end and the means chosen. The greater the restriction on speech, the less likely it will be deemed to be reasonable. A complete ban on truthful advertising of a lawful product is very unlikely to be upheld because such a restriction is not narrowly tailored. [See 44 Liquormart, Inc. v. Rhode Island (1996)] Hence, the complete ban on advertising of tobacco products probably will be an unconstitutional infringement on freedom of speech

As an aide to a member of the Congress of the United States, you are expected to provide an analysis of the constitutionality of proposed legislation that your employer is called to vote on. A bill has been proposed that would create a mandatory price schedule for every motor vehicle sold in the United States. Which of the following should you tell your employer is the strongest constitutional basis for the proposed legislation?

All motor vehicle transactions in the United States, taken as a whole, have a significant impact upon interstate commerce. - saying b/c Congress can regulate transportation in US is wrong; too broad. Can only regulate interstate transp

At will employment and property interests

An at-will employee has no property interest in their continued employment, and therefore has no procedural DPC claim

A state's legislature passed a statute that required every used car sold in the state to be tested prior to sale to determine whether it was in compliance with a set of strict exhaust emission standards that were also included in the legislation. Used cars would have to be brought up to standard and pass the emissions test prior to sale. Certain persons in the state object to the legislation because one of its results will be to raise the average price of used cars in the state. Only cars to be sold for junk are exempt from the statute. Among the following, who would be most likely to have standing to raise a constitutional challenge to the legislation?

An out-of-state dealer of used cars who had a contract to sell cars to a large dealer in the state; contracted already = injury in fact - state resident merely thinking of buying or selling a car does not have standing; injury to them is strictly hypothetical and abstract - An out-of-state manufacturer who might be required to indemnify its dealers in the state for costs arising from the statute is wrong; this is a hypothetical injury

Pardon Power

Article II, Section 2 of the United States Constitution grants the President the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This pardon power is not subject to control by Congress, and it includes the power to commute a sentence on any conditions the President chooses (as long as the conditions do not offend some other constitutional provision) - must be a *federal offense* or potential charge under federal law, no power to pardon state law violations - note: can pardon if commits act against fed and state law, but only fed govt indicts

A state provided for a public school system based primarily on property tax revenues from the various districts. School districts that had a property tax base below a certain threshold received supplemental funds from the state that were derived from state lottery revenues. The school districts receiving the supplemental funds served a predominantly Hispanic population as compared to the school districts funded only from property tax revenues. To help balance its budget this year, the state legislature passed a statute terminating the supplemental funds program and earmarking the lottery revenues for deficit reduction. A group of parents of Hispanic schoolchildren in one of the school districts formerly receiving supplemental funds filed suit in federal court, alleging that the state's action in terminating the funding violates the Equal Protection Clause of the Fourteenth Amendment. Which of the following best describes the appropriate standard by which the court should review the constitutionality of the state action?

Because no suspect classification or fundamental right is improperly burdened in this case, the parents will have to demonstrate that the statute is not rationally related to any legitimate state interest. - it is not enough to show that legislation has a discriminatory effect on a suspect classification; there must be an intent to discriminate. To establish a racial, national origin, or ethnicity classification, the party challenging the law must show that (i) the racial classification appears in the law itself (facial discrimination), (ii) the law was applied in a purposefully discriminatory manner, or (iii) the law was enacted or maintained for a discriminatory purpose. None of these situations appears to be indicated under these facts

An employee of the United States Department of Labor was instructed by his superior to solicit subscriptions to the Department's bulletin on a door-to-door basis in the city in which he worked. While doing so, the employee was arrested for violation of a city ordinance that prohibited commercial solicitation of private residences. What is the employee's best defense?

Intergovernmental immunity. -State and local governments cannot tax or regulate the activities of the federal government. This principle is often termed "intergovernmental immunity." The arrest and prosecution of a federal employee who was on the job violates this principle, which is based on the supremacy of the federal government and federal law. - First Amendment as it applies to states via the 14th is a good argument but not the best. would subject the city's actions to strict scrutiny and allow the city to prevail if it could prove that its action was necessary to achieve a compelling government purpose. But immunity automatically makes govt employee win

A state adopted a statute making the ritual slaughter of chickens illegal. The legislative debates made clear that the purpose of the statute was to prevent unnecessary cruelty to animals. The religious leader of a church located within the state, whose core religious beliefs require ritual slaughter of chickens during worship services, brought suit to have the statute declared unconstitutional for violating her right to practice her religion. How will the court likely rule?

Invalidate the statute, because it targets only ritual slaughter. - The First Amendment provides that the free exercise of religion shall not be abridged; however, the prohibition is far from absolute. The Supreme Court has stated that the amendment prohibits the government from outlawing religious beliefs and it has struck down a statute similar to the one here that outlaws conduct merely because it is religious (i.e., ritual slaughter of chickens is prohibited but not other instances of chicken slaughter), at least when the law is not necessary to achieve a compelling interest. - even if prevention of cruelty to animals is a compelling interest, a statute prohibiting all ritual slaughter of chickens probably is not necessary to achieve the goal of preventing unnecessary cruelty to animals; a statute prohibiting cruel methods of slaughter would serve such a purpose

A toy makers' union, angry about poor working conditions and low wages, staged a nationwide strike just weeks before the holiday season. Larger toy sellers immediately hired independent toy makers to fulfill the traditionally increased demand for toys during the holidays. Enraged, striking toy makers committed acts of violence against independent toy makers and attempted to destroy shipments of independently made toys as they were being loaded off trucks at toy sellers' receiving docks. In response to the increasing violence, Congress met in emergency session and enacted a measure directing the President to send military troops to the affected areas to preserve order and to ensure the continued flow of commerce. Is this enactment constitutional?

No, because it infringes on the President's authority as Commander in Chief of the armed forces. - The President's role as Commander in Chief of the armed forces includes extensive power to deploy the military against any enemy, foreign or domestic. Congress lacks such power. Therefore, this enactment directly infringes on the President's authority as Commander in Chief to make such orders as he deems proper with respect to the armed forces, and thus violates the doctrine of separation of powers.

A state set up an intrastate message routing system to carry messages to and from the various state agency offices located throughout the state. This proved to be cheaper and more efficient than the United States Postal Service. The message service worked so well that the state offered the messenger service to its employees as a fringe benefit. Moreover, it expanded delivery options beyond state offices to any address in the state and permitted the employees to use the service for personal correspondence as well as for official business. Are the state's actions constitutional?

No, because it violates the federal postal monopoly. - The legislation is unconstitutional because it violates the federal postal monopoly. Article I, Section 8, Clause 7 of the Constitution grants Congress the power to establish post offices and post roads. This power grants Congress a monopoly over the delivery of mail. No other system for delivering mail-public or private-can be established absent Congress's consent. Congress has delegated to the Postal Service the power to decide whether others may compete with it, and the Postal Service has carved out an exception to its monopoly for extremely urgent letters. However, this exception would not apply to the state messenger service here since the state service extends to every letter or package of an employee deliverable within the state. -While it is true that there is a market participant exception to the Commerce Clause, the Commerce Clause is not the controlling law here; the controlling law is the federal postal power

A state statute was struck down by the supreme court of the state on the grounds that it was in conflict with the Supremacy Clause of the United States Constitution as well as the Equal Protection Clause of the state constitution. Does the United States Supreme Court have jurisdiction to hear an appeal of the state supreme court's decision?

No, because of the "adequate and independent state ground" theory.

A city ordinance provided that anyone who wanted to speak in a public park must have a permit to do so issued by the city. The ordinance granted the mayor the power to issue or deny such permits based on the mayor's judgment of whether the speech would be "in the public interest." The mayor has never denied a permit to anybody desiring to speak on a political topic. A city resident who was unhappy with the city government went to a public park in the city square. There, the resident made a 10-minute speech accusing the mayor and the city council of gross incompetence and urging voters to "throw the rascals out" at the next election. The city resident had not applied for a permit. After the resident completed his oration, the police arrested him and charged him with violating the permit ordinance. Would a conviction of the resident be constitutional?

No, because the ordinance is void on its face. - Although a municipality can place reasonable time, place, and manner restrictions on certain aspects of speech, it may not adopt a regulation that gives officials broad discretion over speech issues. If a statute gives licensing officials unbridled discretion, it is void on its face, and speakers need not even apply for a permit. They may exercise their First Amendment rights even if they could have been denied a permit under a valid law, and they may not be punished for violating the licensing statute. Here, the law allows the mayor to grant or deny permits based on his assessment of public interest. This is too much discretion to be valid.

Congress enacted a statute appropriating money to the states on condition that the states use the money to support "public performances of classical ballet open to the public." The statute provided that the money was not to be used to support any other type of dance, and that tickets to any performance paid for with these funds were to be distributed to the public on a first come, first served basis. A state that accepted a grant of $500,000 under the federal statute gave half of the grant to a state-sponsored ballet company. The company had been started 20 years earlier as part of a state effort to bring culture to poor, inner-city areas. By state law enacted when the company was formed, no less than 35% of the tickets to each performance of the ballet company must be distributed to the inner-city school systems to be given to minority school children. Is the state's method of distributing tickets to the state ballet company's performances constitutional?

No, because the state distribution system violates the Supremacy Clause. - A valid act of Congress supersedes any state or local action that conflicts with it. The act here is valid because Congress has the power to spend for the general welfare, and in so doing may place conditions on grants as it sees fit. The state law directly conflicts with the federal law because the federal law requires that tickets be distributed on a first come, first served basis, and the state law requires that 35% of the tickets be given to minority school children. Because the state law conflicts with the federal law, it is invalid.

After a recent rainy season, a number of the communities in a western state suffered flooding and mudslides. A study commissioned by the state legislature determined that the extensive removal of a certain plant from hillsides within the state contributed significantly to the flooding and mudslides. The plant had an extensive root system that helped hold hillside soil in place, and it was being rapidly removed because its roots had recently gained national favor as a powerful herbal remedy. As a result, the legislature passed a statute prohibiting the removal of more than 50% of such plants from any hillside within the state. A landowner within the state challenged the statute under the Takings Clause of the Fifth Amendment, alleging that he had regularly harvested substantially more than 50% of the plants from his property and needed to do the same this year to meet the demand for the root. Is he likely to prevail in his challenge?

No, because the statute promotes a legitimate public purpose and permits the continued use of the landowner's property. - The landowner is not likely to prevail because the statute does not constitute a total taking of his property and greatly promotes public welfare. If a government regulation denies a landowner all economic use of his land, the regulation generally will constitute a "taking" requiring the payment of "just compensation" under the Fifth Amendment. However, regulations that merely decrease the value of property do not necessarily result in a taking as long as there remains an economically viable use for the property. The court will consider (i) the social goals sought to be promoted, (ii) the diminution in value to the owner, and (iii) whether the regulation substantially interferes with distinct, investment-backed objectives. Here, the statute promotes the important public purpose of trying to reduce mudslides and flooding, and does not totally ban the landowner from using his property for harvesting the plant. Furthermore, reducing the risk of mudslides may benefit the property in the longer term. Thus, the regulation does not constitute a "taking" of private property in violation of the Fifth Amendment.

Under a state aid-to-education statute, one private school receives: (i) free textbooks from the state, (ii) an exemption from state taxes, and (iii) 20% of its operating budget in the form of state grants. The remaining 80% of the school's budget is covered by tuition fees and by donations from alumni and others. The school is licensed by the state, but the state has no requirement for certification and licensure of teachers in private schools. A teacher was hired and given the school's standard three-year contract. In the fall term of his second year, the teacher gave a lecture to his students criticizing the school's use of school uniforms and encouraging the students to organize a protest against the uniform policy. After the speech, the teacher was called to the administrative office by the headmaster and fired on the spot, despite the teacher's protests that he had almost two years left on his contract. The teacher requested a hearing and was told to leave the premises of the school immediately. The teacher files suit in federal district court, alleging that his constitutional rights have been violated. Is the teacher likely to succeed?

No, because there was no constitutional violation here. - The Fourteenth Amendment Due Process Clause, which makes many of the provisions of the Bill of Rights applicable to the states, does not apply to purely private conduct that interferes with these rights. Thus, unless the private individual (i) was performing exclusively public functions, or (ii) took actions with significant state involvement, the individual's action is not unconstitutional. In this case, the school is a private institution performing a function-education-that has never been considered to be an exclusively public function. [See Pierce v. Society of Sisters (1925)] Furthermore, its licensing by the state and receipt of state funds do not constitute significant state involvement with regard to its personnel matters; thus, the teacher cannot establish that the school exercised state action. [See Rendell-Baker v. Kohn (1982)] Free speech: (A) is incorrect because constitutional protection for freedom of speech does not extend to actions taken by private individuals. Furthermore, even a public school probably could have fired the teacher for his speech (if its termination procedures were otherwise proper). Because public schools generally are not public forums, reasonable restrictions based on legitimate pedagogical concerns rather than the content of the speech are permissible. [Bethel School District No. 403 v. Fraser (1986)] The school reasonably could argue that urging the students to organize a protest against a school policy would disrupt discipline and interfere with its educational process. Due process not violated: The constitutional right to due process of law does not apply to *private conduct.* Had the teacher been fired by a public school, he would be able to claim a property right in his employment for the balance of his contract. The school probably would have had to provide him with a pretermination opportunity to respond to the charges against him. Procedural due process: the teacher did have property rights in his job because he had a three-year contract with the school. Had the teacher instead been an employee-at-will, without a contract, he would have had no property interest in continued employment even if his employer had been a public. But again, this was private conduct

To combat rising insurance rates, a state formed a state-owned insurance company that operated exclusively within the state. The company provided insurance on the basis of premiums calculated according to a schedule of fees. Under the schedule, premiums for residents of a particular city were 25% higher than the premiums for any other municipality in the state. Forty percent of that city's residents were of Mexican descent compared with a state-wide Mexican-American population of approximately 15%. A Mexican-American citizen living in the city brings suit, alleging that the state insurance company's rate structure violates the Equal Protection Clause. Will the citizen's suit prevail?

No, unless the citizen shows that Mexican-American citizens pay higher rates than similarly situated non-Mexican-American citizens of that city. - The mere fact that legislation or governmental action has a discriminatory effect is not sufficient to trigger strict scrutiny. There must be intent to discriminate on the part of the government, which can be shown by the discriminatory application of a law or regulation that appears neutral on its face. If the state insurance company is charging the city's Mexican-American citizens higher rates than citizens who are otherwise situated the same, the court will find that there is an intent to discriminate in the rate-setting process, triggering strict scrutiny because a suspect class is involved

Can a federal court hear a case between a state and a foreign government? What about a Native Amernican tribe against a state?

No. federal court may not hear a private party's or a foreign government's claims against a state government - the Supreme Court has held that, for Eleventh Amendment purposes, a Native American tribe is treated as a private party, and so it is barred from bringing an action against a state government in federal court.

Citizen groups proposed the merger of a large town of 60,000 residents with an adjacent small town of 30,000. To allay fears of residents of the small town that control of the government would be in the hands of the more populous town, the proposal would establish three council districts of 20,000 persons each in the large town and three districts of 10,000 persons each in the small town for a period of 20 years. Each district would elect one representative to the six-person town council, and the mayor would be elected at large. The proposal carried by large majorities in both towns, and representatives from both towns proceeded to carve each former city into three council electoral districts. Three taxpayers from the large town filed suit to enjoin the holding of an election with council districts of such disparate proportions.Which of the following represents the plaintiffs' best constitutional argument?

P and other residents have been denied equal protections of the law - The Equal Protection Clause of the Fourteenth Amendment prohibits state dilution of the right to vote by malapportionment of electoral districts. This rule applies to electoral districts for local governmental bodies as well as for the state legislature. When a local government establishes voting districts for the election of representatives, it must establish districts that do not have an "unjustifiably large" variance (e.g., over 30%) in the number of persons in each district. Here, the large town districts have twice as many persons as the small town districts, creating an unconstitutional dilution of the large town citizens' right to vote - arguing that this denies republican form of govt is wrong. That would be a political Q - Article IV Privileges and Immunities Clause, which provides that citizens of each state shall be entitled to all privileges and immunities of citizens of the several states, only prohibits a state from discriminating in favor of its own citizens and against citizens of other states with regard to "fundamental rights," i.e., those involving important commercial activities or civil liberties. Here, out-of-state citizens are not being discriminated against, so the clause is not applicable. - Due Process Clause is usually used to review a law that limits the liberty of all persons to engage in some activity, whereas the Equal Protection Clause is implicated when a law limits the liberty or rights of some persons but not others. The option raising the equal protection argument is therefore the better choice

Presidential Emergency powers

President's emergency power to protect United States citizens is unclear. While he has power to act concerning foreign nations, it is unclear whether he could "legislate" concerning the internal affairs involved here (e.g., tax collection) merely because he thought that United States citizens needed protection.

A state legislature passed a new law overhauling the state's education system. Under the new system, the state would provide textbooks to any public or private schools that requested them. Among the schools that requested and received the textbooks was a religious school that admits only Caucasian students. Which of the following is the strongest argument against the constitutionality of free distribution of textbooks to the students at the private school?

Segregation is furthered by the distribution of textbooks to these schools. - State provision of textbooks to the segregated private school violates the Equal Protection Clause by giving state support to a racially segregated school. Here, the private school admits only Caucasian students and is thus segregated. - wrong answer: it violates Establishment Clause. The Supreme Court has held that a state lending textbooks on secular subjects to all students, including those at religious schools, does not violate the Establishment Clause.

Intergovernmental immunity

State and local governments cannot tax or regulate the activities of the federal government

Congress passed a bill to relocate a special forces training center. The bill included funds to facilitate the move and mandated that the funds be so spent. The bill was signed into law by the President. Thereafter, the senators from the state in which the training center is currently located informed the President that they would withdraw their support for an important bill he favored if the move takes place. Which of the following statements is most accurate regarding the power of the President on this issue?

The President has no power to decline to spend the funds appropriated for the move because they were specifically appropriated for the relocation of the training center. - The President has no power to decline to spend funds specifically appropriated by Congress when Congress has expressly mandated that they be spent, regardless of Congress's reason for making the appropriation. The President has no "legislative" power in internal affairs, and has a duty under Article II to "see that the laws are faithfully executed." In contrast, Congress clearly has the power to spend to "provide for the common defense and general welfare." [U.S. Const. art. I, §8] Hence, the Supreme Court has ruled that there is no constitutional basis for the President to "impound" (i.e., refuse to spend) funds whose expenditure Congress has expressly mandated. [Kendall v. United States (1838)] Here, since the bill included an appropriations provision mandating that funds be spent on the relocation of the training center, the President must carry out the congressional directive - Choice C (The President, as part of his authority as commander in chief of the armed forces, has the power to leave the special forces training center where it is) is wrong. President's authority is very limited when he is taking action in the domestic arena against the express will of Congress. Congress has specifically directed that the training center be relocated, and there is no indication in the facts that there is a military necessity in keeping the center at that location

After the dictator of a Caribbean island country was deposed, the President of the United States extended official recognition to the country's new government. As ambassador to the newly recognized government, the President nominated an aging industrialist who was a close personal friend of the deposed dictator. Unable to muster enough votes to block approval of the new ambassador, the President's political opponents in the Senate caused a resolution to be passed requiring that all consular staff below the rank of ambassador be selected from a list of "approved" candidates who have been certified as acceptable by the new country's government. The President refused to consider any of the Senate's list of approved candidates. Which of the following is the President's strongest constitutional basis for refusing to obey the Senate resolution?

The President has the authority to nominate and appoint the diplomatic representatives of the United States. - Article II, Section 2 provides that the President shall nominate, and with the advice and consent of the Senate shall appoint, ambassadors and other officers of the United States. The section also provides that Congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments. Under separation of powers principles, however, Congress may not vest in itself any broader appointment powers than what is provided for by the Constitution. Where Congress has not vested the appointment power in courts of law or the heads of departments, it is not permitted to restrict the candidates that the President may nominate for appointment. Thus, the Senate's attempt here to exert some control over the President's choice of lower-level diplomatic representatives is an unconstitutional violation of the separation of powers.

A state requires that persons holding a state license to practice a particular profession reside in the state for at least one year before engaging in that practice. A practitioner who held the state license moved into the state and shortly thereafter contracted with a local business to provide professional services. As soon as he began practicing his profession, the state licensing board sought to sanction him for violating the one-year waiting period. Which of the following provides the strongest basis for the practitioner to challenge the waiting period?

The Privileges or Immunities Clause of the Fourteenth Amendment. - The Fourteenth Amendment Privileges or Immunities Clause prohibits states from denying their citizens the privileges or immunities of national citizenship, including the right to interstate travel. The right to travel includes the right of newly arrived citizens of a state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state. In Saenz v. Roe (1999), the Supreme Court held that the Clause was violated by a state statute limiting the welfare benefits of those who had resided in the state for less than a year. Hence, that Clause is an appropriate basis for challenging the provision

Establishment clause and lending books to religious private schools

The Supreme Court has held that a state lending textbooks on secular subjects to all students, including those at religious schools, does not violate the Establishment Clause.

To help alleviate discrimination in private contracts, Congress passed a bill providing: "It shall be unlawful to discriminate against minority race members in the making and enforcement of any public or private contract, of every kind whatsoever. Any person whose rights under this statute are violated may bring a cause of action against the party that has so violated the person's rights in the federal district court for the district in which he resides, seeking treble damages or $1,000, whichever is greater." Several large banks that have been accused of discriminatory loan practices challenge the federal statute. If the court finds that Congress had the power to enact the statute, the court most likely will find that the power arose from which of the following?

The Thirteenth Amendment - the Commerce Clause-might also be a basis for the legislation here, but it is not as good an answer as (A) because the commerce power is limited to transactions that either in themselves or in combination with other activities have a substantial economic effect on interstate commerce, and by its terms the legislation here can reach wholly intrastate transactions. The interstate commerce requirement is a limit on congressional legislation and no such limit is present under the Thirteenth Amendment. Therefore, the Thirteenth Amendment is a better basis for the legislation here. - not the Contracts Clause; that is enforced against state laws attempting to modify contracts, not fed laws

13th Amendment

The Thirteenth Amendment simply provides that neither slavery nor involuntary servitude shall exist within the United States and gives Congress the power to adopt appropriate legislation to enforce the proscription. Since the amendment is not limited to proscribing state action, Congress may adopt legislation regulating private parties. Under the amendment, the Supreme Court has allowed Congress to prohibit any private conduct that Congress deems to be a "badge" or "incident" of slavery, and has upheld statutes regulating private contracts

An accountant employed by the Federal Communications Commission was offended by various jokes and cartoons that employees would post in the office cafeteria. The Commission did not have any rules regarding what employees could post in the cafeteria, and none of the cartoons were pornographic or harassing. Nevertheless, the accountant lodged a number of complaints with his supervisor that went unheeded. Finally, the accountant posted his own notice chastising the hypocrisy and immorality of the agency for allowing such cartoons when it was charged with ensuring a standard of decency on the public airwaves. The notice prompted a great deal of debate among employees and a great deal of displeasure on the part of the accountant's supervisor, particularly after it was posted on another employee's blog and received some media attention. A labor contract between the agency and the clerical workers' union contained a policy for providing for termination of union employees only for certain specified grounds, but the accountant was not a member of the union and was not covered by the policy or any other employment agreement. Which of the following statements is most accurate regarding the agency's right to dismiss the accountant?

The accountant has a liberty interest in the exercise of his First Amendment rights that entitles him to a hearing to contest the grounds of his dismissal. - Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech. A government employee may not be fired for expressing his views regarding public issues, but can be fired for speech that disrupts the employer's policies or undermines the employer's authority. Under the Court's expansive interpretation of what a public issue is in this context [see Rankin v. McPherson (1987)], the accountant's statement would probably qualify. At the very least, he can make enough of a showing that his termination violates his free speech rights to be entitled to a hearing on the issue under procedural due process principles.

An attorney was employed by the United States Department of Health and Human Services in a regional office located in a tobacco-growing state. A labor contract between the agency and the clerical workers union contained a policy providing for termination of union employees only for certain specified grounds. The attorney, however, was not a member of the union and not covered by such a policy. The attorney was angered by the regional director's refusal to adopt a no-smoking policy for employees and visitors in the office. She posted a notice in the employee cafeteria ridiculing what she called the hypocrisy of an agency promoting health issues and nonsmoking programs while refusing to provide its employees with those same opportunities. The notice prompted a great deal of debate among the employees and was brought to the attention of the regional director, who was very displeased. Which of the following statements is most accurate regarding the director's right to dismiss the attorney?

The attorney has a liberty interest in the exercise of her First Amendment rights that entitles her to a hearing to contest the grounds of her dismissal. - Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech. If a government employer seeks to fire an employee for speech-related conduct when the speech involved a matter of public concern but is not made pursuant to her official duties, the courts must carefully balance the employee's rights as a citizen to comment on a matter of public concern against the government's interest as an employer in the efficient performance of public service. Under the Court's expansive interpretation of what is a public issue in this context [see Rankin v. McPherson (1987)], the attorney's statement would probably qualify. At the very least, she can make a sufficient showing that her termination violates her free speech rights to be entitled to a hearing on the issue under procedural due process principles. - *No property interest* as a public employee that precludes her from being fired without notice and an opportunity to respond: he was an *at will* employee

A state statute makes criminal "all speechmaking, picketing, or public gathering of any sort on the steps of the supreme courthouse Monday through Friday, between the hours of 8:30 a.m. and 4:30 p.m., when court is in session." A citizen is upset about a supreme court decision that was just released and stands on the steps of the courthouse at noon, while court is in session, handing out leaflets and exhorting passersby to vote the state supreme court justices out of office. If the citizen is prosecuted for violation of the statute, which of the following best describes the applicable burden of proof?

The citizen will have to show that there was no reasonable basis for enacting the statute. - Other than streets, sidewalks, parks, and designated public forums, most public property (including a court building and its grounds) is considered to be a limited public forum or a nonpublic forum. The government can regulate speech in such a forum to reserve the forum for its intended use. Regulations will be upheld as long as they are (i) viewpoint neutral, and (ii) reasonably related to a legitimate government purpose. Here, the statute prohibited public gatherings on the steps of the courthouse at specified times while the court was in session, which appears to be a reasonable, viewpoint neutral effort to preserve government property for its intended use. The citizen would have the burden of proving that there was no reasonable basis for the statute

Federal Postal Monopoly

The legislation is unconstitutional because it violates the federal postal monopoly. Article I, Section 8, Clause 7 of the Constitution grants Congress the power to establish post offices and post roads. This power grants Congress a monopoly over the delivery of mail. No other system for delivering mail-public or private-can be established absent Congress's consent. Congress has delegated to the Postal Service the power to decide whether others may compete with it, and the Postal Service has carved out an exception to its monopoly for extremely urgent letters. However, this exception would not apply to the state messenger service here since the state service extends to every letter or package of an employee deliverable within the state.

To help reduce a rising crime rate among teenage boys in a city, a scout leader decided to organize an overnight jamboree to get teens interested in scouting. The scout leader met with the city's parks commissioner and requested a permit to camp at a large city park located on the oceanfront. The parks commissioner told the scout leader that a city ordinance prohibited large organized use of the park during the evening and all overnight camping. The commissioner explained that the city wished to keep the park open for general use during the evening, when most people were off work, and the park was cleaned overnight. The scout leader brought an action in federal district court, seeking to compel the city to allow overnight camping for this one special occasion. If the court determines that the ordinance is valid, what will be the basis for its decision?

The ordinance is narrowly tailored to serve an important government interest and does not unreasonably limit alternative channels of communication. - While the First Amendment protects the freedoms of speech and assembly, the government may reasonably regulate speech-related conduct in public forums through content-neutral time, place, and manner regulation. To avoid strict scrutiny and be upheld, government regulations on speech and assembly in public forums must be content neutral and narrowly tailored to serve an important government interest, and must leave open alternative channels of communication. Here, the ban on camping overnight in the park, a content-neutral regulation of a public forum, is TPM reg

To provide low-cost housing to the unemployed, a city has a policy of leasing empty city-owned buildings to social agencies that promise to convert or rehabilitate the buildings into habitable, low-cost apartments and to pay the city 10% of any net profit made from rentals. A church entered into such an agreement with the city and converted one of the city's abandoned office buildings into 50 small, low-cost apartments. The lease agreement used by the church provides, among other things, that the lessee must affirm a belief in God. The lease agreement was submitted to the city for approval prior to its use by the church, and it was approved. On the first day that the church made the apartments available for rent, the plaintiff, an avowed atheist, applied to lease a unit. The plaintiff's application was denied for the sole reason that the plaintiff refused to affirm a belief in God. If the plaintiff brings suit against the church on the ground that the required affirmation of a belief in God violates the plaintiff's constitutional rights, who likely will prevail?

The plaintiff, because the purpose and effect of the church's policy results in a violation of the Establishment Clause. - he First Amendment prohibits laws respecting the establishment of religion. Governmental action that does not contain a sect preference will pass muster under the Establishment Clause if it has a secular purpose, its primary effect neither advances nor inhibits religion, and it does not require excessive government entanglement with religion. The church's action will be considered to be state action here because of the significant involvement between the church and the city. (The city is leasing the building to the church, the church shares profits with the city, and the church submitted its lease forms to the city for approval.) Requiring a lessee to affirm a belief in God appears to have no secular purpose. Moreover, its primary effect probably is to advance religion. Therefore, the church's action will be found to have violated the Establishment Clause

The United States Surgeon General was cited for contempt for refusing to answer questions as part of a Senate investigation regarding an issue in the Food and Drug Administration. His contempt citation will be dismissed if he can show which of the following?

The questions do not relate to any matter concerning which the Senate may legislate. - Congress's power to investigate is limited to matters on which it can legislate. Therefore, if the Surgeon General can demonstrate that the questions concerned matters upon which Congress could not legislate (not an enumerated power under Article I, Section 8), then this contempt citation must be dismissed. - Congress may question member of the executive branch concerning his duties, and he is not immune from prosecution - he would have a privilege not to answer only if he is subject to criminal liability. Merely because he may get fired is not sufficient grounds for him to refuse to answer a lawful question posed by a member of the Senate in an appropriate hearing

Congress passed a law allowing widespread oil exploration on federal lands in the western United States. A large deposit of oil sand was discovered in one western state and Congress authorized an oil sand refining plant to be built on federal park land within the state. The refinery was built in compliance with federal pollution regulations. Pursuant to state law, the plant manager allowed the state to inspect the plant before putting it into operation. Because state refinery standards were more strict than the federal standards (in order to better protect state citizens from pollution associated with refineries), the refinery did not pass the inspection, and the state inspector refused to give the manager a permit to run the refinery. The refinery manager nevertheless began to run the refinery and was fined by the state. Which of the following is the manager's best defense against imposition of the fine?

The state law violates the principles of intergovernmental immunity as applied to the manager. - The states have no power to regulate the activities of the federal government unless Congress consents to the regulation. Thus, instrumentalities and agents of the federal government are immune from state regulations that interfere with their federal functions. Here, the regulation clearly interferes with the manager's duties to run the refinery. While it might be argued that the manager agreed to comply with the state regulations, because he allowed the state inspection, nothing indicates that Congress consented, and so the state regulation cannot be applied to the manager

A state passed a statute that provided for direct reimbursement from public funds to nonpublic schools, including religious schools, of the cost of performing various testing services required of all schools by state law. The three state-prepared tests involved consisted of a student evaluation test, a comprehensive achievement test, and scholarship and college qualification tests. The law also provided for payment to the nonpublic schools for the grading of the tests, which are graded objectively. On review by the Supreme Court, what is the likely result?

The statute is constitutional, because objective grading standards are used and reimbursement covers only secular services. - Governmental action that does not contain a sect preference will pass muster under the Establishment Clause if it has a secular purpose, its primary effect neither advances nor inhibits religion, and it does not require excessive government entanglement with religion. Here, the nature of the aid provided by the statute has a secular purpose, is of legitimate interest to the state, and does not present any risk of being used to aid the transmission of religious views

A state statute provides: "Any merchant desiring to sell within this state any product or goods manufactured outside of the United States must (i) obtain a special license from the state for $50 and (ii) clearly mark the goods as to specify their country of origin." The statute makes it a misdemeanor for any merchant to willfully sell goods without complying with these statutory requirements. Which of the following statements is correct regarding the constitutionality of the statute?

The statute is unconstitutional in its entirety. - Regulation of foreign commerce is exclusively a federal power because of the need for the federal government to speak with one voice when regulating commercial relations with foreign governments. The existence of legitimate state interests underlying state legislation will not justify state regulation of foreign commerce. The state statute, in imposing requirements for a license costing $50 and for a clear marking of goods as being from a foreign country, clearly is an attempt by the state to restrict or even eliminate the flow of such goods in foreign commerce. Thus, the statute is unconstitutional.

A state study indicated that an inordinately high percentage of homeless in the state were afflicted by alcoholism or addiction to illegal drugs. The legislature therefore decided to levy a special tax, with all proceeds marked for rehabilitative services for the homeless. However, the legislators determined that direct taxes on alcoholic beverages would be resented by the citizenry. Lobbyists from the state's growing wine industry also objected to anything that would retard the industry's development. There were no breweries or distilleries within the state. Thus, a tax was eventually passed requiring newspapers and magazines of general circulation published in the state to be taxed at a rate of 20% on all advertising space sold for beer or distilled spirits promotions. For certain historical reasons, a high proportion of the advertising revenue of a particular small newspaper within the state came from beer and wine ads. The publisher of the small paper filed suit to have the tax declared unconstitutional. A major wholesale beer and liquor distributor located within the state and several out-of-state brewers and distillers who sold and advertised their products in the state also joined in the suit as plaintiffs. If the tax is declared unconstitutional, what is the most likely reason?

The tax infringes on freedom of the press, which is guaranteed by the First and Fourteenth Amendments. - Press and broadcasting companies can be subject to general business taxes, but a tax applicable only to the press or based on the content of a publication will not be upheld absent a compelling justification. Mere need for revenue probably is not a sufficiently compelling interest. Wrong answer: The tax is unconstitutional because it is not properly apportioned. When a sales tax is imposed on a sale taking place entirely within one state, there is no apportionment problem because the sale cannot be taxed by any other state (because no other state has a sufficient nexus).

A mother and father instructed their son who just turned age 14 to report to a community woodworking shop instead of school. A state law requires all children to attend school until the age of 16, and the woodshop does not qualify as a school under state law. Because the parents did not report their son's absence, a truant officer visited the family and warned them that parents who willfully refuse to comply with the mandatory attendance law are subject to a $500 fine and up to 30 days in jail for each day of noncompliance. The parents listened, but informed the officer that they could not comply with the state law because of their religious views, under which woodworking is an essential spiritual pursuit. The following day, the 14-year-old again went to work in the community woodshop instead of to school. His parents were then arrested and charged with violating the state mandatory school attendance law. At the parents' criminal trial, which of the following may the court constitutionally consider in determining whether First Amendment protection applies to the parents' views?

Whether the parents' belief system occupies a place in their lives similar to that occupied by orthodox religious beliefs. - Although the validity of religious beliefs cannot be questioned, the role a belief system plays in a person's life can be examined to determine whether the beliefs are indeed religious. The Free Exercise Clause of the First Amendment, applicable to the states through the Fourteenth Amendment, prohibits punishing people for their religious beliefs. When a person claims that he is being punished for his religious beliefs, the court may consider whether the person challenging the law sincerely holds those beliefs. Thus, the court may consider whether the parents' beliefs play a role in their lives similar to that of orthodox religious beliefs. -wrong answer: Whether the parents' belief system is related to an organized group that gathers regularly to express or celebrate the belief system. religious beliefs do not have to be related to an organized group to be considered religious -the Free Exercise Clause protects all sincerely held religious beliefs, regardless of whether a specific religion is deemed to be "established" or "traditional." - eligious beliefs need not involve belief in a supreme being to qualify for constitutional protection. An asserted religious belief must occupy a place in the believer's life parallel to that occupied by orthodox religious beliefs. Even an internally derived belief is entitled to protection.

Due to budget shortages and a critical need of funding to fight a war, Congress enacted a $25 tax on each person flying into an airport in the five most popular vacation destinations in the country, as determined by Congress. The tax was implemented, and officials in the five destinations were outraged, fearing that the number of vacationers to the taxed destinations would decrease due to the tax. If the tax is challenged in federal court by an official with standing, is the most likely result that the tax will be held constitutional?

Yes, because Congress has plenary power to impose taxes to raise revenue. - Congress has the power to lay taxes under Article I, Section 8, and a tax measure will usually be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity. Despite the protest from the officials of the affected locations, the tax here does appear to be related to revenue production and so will be upheld

To stabilize state corn prices, a state purchased large quantities of corn from resident farmers and converted the corn into biodegradable plastics. The state then sold the plastics to state residents at cost and to out-of-state residents at cost plus 25%. An out-of-state corporation purchased biodegradable plastics from the state at a cost substantially below the price other companies charge. Nevertheless, the corporation believes that it is unconstitutional for the state to charge out-of-state purchasers more than resident purchasers. The out-of-state corporation, therefore, brings suit in federal court challenging the state pricing scheme. Assuming that the court has jurisdiction, should it uphold the constitutionality of the pricing scheme?

Yes, because as a market participant the state is free to charge nonresidents more than residents. - The Commerce Clause does not prevent a state from preferring its own citizens when the state is acting as a market participant (e.g., buying or selling products, hiring labor, giving subsidies, etc.). Because the pricing scheme here involves the sale of goods, the state can constitutionally charge whatever prices it desires to whomever it desires

The federal Food Safety Act provides for sporadic inspections of produce in order to prevent illness among consumers. After several widespread outbreaks of illness involving escarole, a new and more accurate procedure for determining the presence of harmful bacteria was developed. The new procedure was used in a limited area on escarole shipped locally within a large escarole-producing state to determine its effectiveness. Subsequently, Congress enacted an additional provision to the Act, levying a one cent tax on each crate of escarole so inspected. Is this provision constitutional?

Yes, because it is a proper exercise of congressional power to raise revenue. - A tax, even though enacted for a regulatory rather than a revenue-raising purpose, can be upheld as a "necessary and proper" exercise of Congress's power to tax under Article I, Section 8, Clause 1. This will be especially true if the revenues derived from the measure are used to cover the expenses associated with the federal regulatory scheme. Because the question does not involve the attempted exercise of a state's sovereignty, there is no issue of the Supremacy Clause

The President of the United States and the leader of a bordering foreign nation agreed that each should appoint three members to a special joint commission to deal with a wildlife problem. The President of the United States, acting in concert with the foreign leader, named the joint commission as a permanent enforcement agency for the regulations that were adopted by both nations. Although the President received prior congressional authorization to enter into this agreement, the Senate did not ratify the agreement by a two-thirds vote. The President then entered into an executive agreement with the foreign leader whereby the joint commission was granted adjudicative as well as enforcement powers with respect to a particular issue. Is the executive agreement by the President valid?

Yes, because the agreement is within the President's powers in the area of foreign affairs. - The Supreme Court has long accepted that the President has broad power to enter into executive agreements with foreign states, and this would be true especially where Congress has authorized the agreement, according to Justice Jackson's opinion in Youngstown Sheet & Tube v. Sawyer (1952), which was adopted by the Court in Medellin v. Texas (2008).

Congress created the National Agency for Burglar Alarms ("NABA"), giving it the power to regulate both burglar alarm hardware and installation personnel. NABA adopted a regulation requiring that all burglar alarm installation companies be licensed, and providing that anyone installing an alarm without a license could be fined. The regulation also provided that any company in the installation business on the day the regulation was adopted automatically would receive a license, but to obtain a license thereafter, an applicant would have to show that he has worked as an installer at a licensed company for at least three years. A man who has been installing alarm systems for eight years sold his installation business a few months before the NABA regulation was adopted and went to work for the purchaser servicing his old accounts. A few months after the NABA regulation was adopted, a representative from a national department store chain approached the man with an offer to hire him as an independent contractor to revamp the chain's alarm systems. The man quit his job and applied for a NABA installer's license. His application was denied because he was not in business on the day the NABA regulation was adopted and had worked for a licensed installer for only a few months. The man decided to install the alarm systems anyway. Can the man properly be fined for installing alarms?

Yes, because the regulation falls within the scope of Congress's commerce power, and Congress may delegate its authority to regulate as it has done here. - Congress has the power to regulate alarm installation companies under the Commerce Clause because the clause permits Congress to regulate any local or interstate activity that, either in itself or in combination with other activities, has an effect on interstate commerce. Burglar alarm companies use instrumentalities of interstate commerce such as phone lines and have a cumulative effect on interstate commerce even though some may only do business locally. Hence, their activities can be regulated by Congress. The delegation to the NABA is valid because Congress has broad discretion to delegate its legislative power; the Supreme Court will uphold almost any delegation of congressional power.

A state enacted a law banning the use within the state of computerized telephone solicitation devices, and requiring that all telephone solicitation calls within the state to in-state numbers be dialed by human beings. Federal legislation and administrative regulations control only the rates to be charged for telephone calls. Is the legislation valid?

Yes, because the statute does not conflict with federal legislation or the negative implications of the Commerce Clause.

A state statute makes it a felony for anyone in the corridors or on the grounds of any building in which a court may be in session to make a speech or carry a sign intended to improperly influence judicial proceedings. During a murder trial, a friend of the defendant was arrested under the statute for carrying a sign on the steps of the courthouse bearing the message: "Free the defendant or the judge will die." Can the friend constitutionally be convicted under the statute?

Yes, because the statute does not violate the freedom of expression guaranteed by the First Amendment. - The statute, although based on the subject matter of speech, is viewpoint neutral and reasonably related to the courthouse purpose of promoting a stable, orderly atmosphere in which judicial proceedings can take place free of improper outside influence or coercion. Thus, the statute is valid and the friend can be convicted for her actions

In an effort to protect the dwindling California condor population, Congress enacted the Condor Preservation Act, which made it illegal to take or sell any part of a California condor. The constitutionality of the Act is challenged by a seller of gifts and artifacts, including artifacts made out of California condor feathers. Is the statute valid?

Yes, because the statute is rationally related to interstate commerce. - Regulating the sale of an item made from a California condor clearly affects commerce. Thus, Congress can act under its broad commerce power. The regulations do not compel surrender of the artifacts, and there is no physical invasion or restraint on them. Neither does the statute prohibit all economic uses of the property (e.g., the artifacts can be displayed in the store, admission can be charged to view them, etc.). Thus, there is no taking of a property right without just compensation. Therefore, Congress's power to regulate is proper, even though it diminishes the opportunity to make a profit.

The President of the United States and the king of a foreign nation entered into a treaty agreeing that citizens of the foreign nation who reside in the United States would not be taxed by the United States and that United States citizens who reside in the foreign nation would not be taxed by it. The treaty was ratified by the United States Senate and the royal council of the foreign nation. One year after the treaty became effective, the foreign nation began to tax United States citizens within its borders. The President immediately declared the tax treaty to be void and ordered the Internal Revenue Service to tax citizens of the foreign nation living in the United States. Is the President's action constitutional?

Yes, under the foreign policy powers of the President. - The President's action is constitutional pursuant to his power over treaties and foreign relations. The power to enter into treaties is vested in the President, and his power to act for the United States in day-to-day foreign affairs is paramount. Even as to foreign relations that require congressional consent, the President's powers are much broader than in the realm of internal affairs. No significant judicial control has been exercised over such declarations. Thus, this action is allowable under these broad powers - wrong answer: Pres emergency powers. these powers are President's emergency power to protect United States citizens is unclear. While he has power to act concerning foreign nations, it is unclear whether he could "legislate" concerning the internal affairs involved here (e.g., tax collection) merely because he thought that United States citizens needed protection. In any case, the power to act here more properly arises from the President's power over foreign affairs and not from a power to protect United States citizens. - treaty being supreme law of land is wrong. while it is true that properly ratified treaties are the supreme law of the land, that only means that conflicting state or local laws must yield. If the President has power to override the treaty (which he does have, as explained above), the Supremacy Clause is not controlling - needs no advice and consent of senate. That is required to make a treaty, not invalidate one